Is Barr’s Letter a Whitewash of the Obstruction of Justice Charge?

After reading Attorney General Barr’s letter summarizing the principal conclusions of the Mueller report, it seems to me even more imperative that the full report be released as soon as possible. For there is some real reason to think that Barr is whitewashing Mueller’s conclusions, especially when it comes to the question of Trump’s obstruction of justice.

According to Barr, Mueller does not reach a conclusion about whether Trump should be charged with that crime but, instead, sets out reasons for and against doing so. But then Barr concludes, with only 48 hours of considering the issue, that he should not be charged—and presumably should not be investigated by the House of Representatives—for obstructing justice.

Barr says that no actions taken by Trump “had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”

That is a plain restatement of what appears to be the law with regard to obstruction of justice. But so much that we know Trump did, either because the evidence has become public or because he did it publicly, does seem to establish such a nexus. Here is just some of what we know or have reason to suspect:

• Trump tried to shut down Comey’s investigation of Flynn and sought a public declaration of his innocence from the FBI director.
• When Comey would not agree, Trump fired him. He told both the Russian ambassador and Lester Holt that he did it to stop a criminal investigation. Trump reportedly asked CIA Director Mike Pompeo and Director of National Intelligence Dan Coats to deny publicly that there was evidence of coordination between the Trump campaign and Russia.
• Trump requested that White House Counsel McGahn fire Special Counsel Mueller.
• Trump reportedly dictated a misleading public statement for his son about the June 2016 meeting with Russians in Trump Tower.
• Trump tried to get Attorney General Sessions to “un-recuse” himself so he could stop the Mueller investigation.
• Trump wanted U.S. Attorney Geoffrey Berman to “un-recuse” himself to take charge of the Michael Cohen investigation.
• Trump apparently dangled pardons to Manafort and Cohen and possibly Flynn as well.
• Trump’s lawyers edited Cohen’s lying statements to Congress.

And there is far more.

So, in light of all this evidence, why there is some question about whether Trump should be charged with obstruction of justice?

Well, one reason might be Mueller believes or is following Justice Department guidelines that hold that a president cannot be indicted while in office. In that respect, his report might be similar to that of the Jaworski “Roadmap” which presented the evidence that the House of Representatives used to build an impeachment case against Nixon. The “Roadmap,” too, did not draw any conclusions about whether Nixon should be indicted or, for the matter, impeached, for obstruction of justice.

If that is Mueller’s implicit or explicit reason for not charging Trump with obstruction of justice, then his report is not exculpatory of Trump in the slightest but, instead, provides a good reason for the House of Representatives to begin impeachment proceedings.

We won’t know whether that was the reason for Mueller’s reticence, however, if we don’t see the report.

Barr’s letter says that his “determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” Without seeing the Mueller report, we won’t know whether Mueller’s determination was made on the same basis. And that’s one reason we must see that report.

And there is another, perhaps even more serious, reason to see that report. Barr writes in his letter that,  “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference, and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.”

This claim is deeply problematic. It implies that if someone is not guilty of an underlying crime, he cannot be shown to have the intent to obstruct justice in the investigation of it.

This is an utterly misguided account of the legal charge of obstruction of justice. Nixon was never charged with ordering the Watergate break-in. And, to this date, we still don’t really have any good idea if he did so. But he was still impeached for obstructing justice and there is little doubt that if he were not president he could have been charged with that crime. Nixon’s corrupt intention in obstructing justice was not to protect himself from being charged with a crime but to avoid the political fallout of Watergate.

So Barr’s rationale for not charging Trump with obstructing justice is wrong as a matter of law and, most likely, is different from, and possibly radically different from Mueller’s rationale for not charging with obstruction of justice. And thus for this reason as well, the House of Representatives, and we, need to see Mueller’s report in order to know whether a House investigation of obstruction of justice should immediately begin.

Even if Trump was entirely innocent of conspiracy with Russia it is clear that the Mueller report contains some reasons to think that Trump is guilty of obstruction of justice—most likely citing many of the facts and suppositions I mentioned above. And, in two ways, it appears that Barr has tried to present that Mueller’s investigation in a way that presents Trump in the best possible light while minimizing what may be evidence for a House of Representatives investigation of Trump, possibly leading to impeachment, for obstruction of justice.

We can’t say, at this point, whether Barr is whitewashing the Mueller report. And that’s why we must see it as soon as possible.